Time Warner Cable tries to put brakes on massive piracy case

As the US Copyright Group sues thousands of file-swappers in federal court, …

Time Warner Cable has no intention of complying with thousands of requests asking it to identify copyright infringers.

Remember the US Copyright Group? They're the DC legal outfit that is turning P2P copyright infringement into cash, partnering with independent movie studios (the big players are not involved) to sue individual file-swappers in federal court—and ISPs are not pleased with the plan.

"Copyright cases involving third-party discovery of Internet service providers have typically related to a plaintiff's efforts to identify anonymous defendants whose numbers rank in the single or low double digits," wrote the cable company. "By contrast, plaintiff in this case alone seeks identifying information about 2,049 anonymous defendants, and seeks identifying information about 809 Internet Protocol addresses from TWC."

Time Warner Cable does not have enough employees to respond to these requests. In a typical month, the company receives an average of 567 IP lookup requests, nearly all of them coming from law enforcement. These lookup requests involve everything from suicide threats to child abduction to terrorist activity, and the company says that such cases take "immediate priority."

Once law enforcement is served, the four full-time workers (and one temp) who make up the ISP's Subpoena Compliance team can turn to other matters, such as subpoenas in civil cases.

The company says that it has the capacity to handle 28 subpoenas from the US Copyright Group per month. Instead, TWC was hit with a request for 809 names within 30 days. In addition, the company has received two other subpoenas, both from the same law firm, asking for another 398 and 224 IP address lookups. Each lookup costs TWC $45.

"If the Court compels TWC to answer all of these lookup requests given its current staffing, it would take TWC nearly three months of full-time work by TWC's Subpoena Compliance group, and TWC would not be able to respond to any other request, emergency or otherwise, from law enforcement during this period," said the filing. "TWC has a six-month retention period for its IP lookup logs, and by the time TWC could turn to law enforcement requests, many of these requests could not be answered."

A page of suspected IP addresses from the Far Cry case

Quash, baby, quash!

The ISP has now asked the court to quash the subpoena for three reasons.

First, because US Copyright Group lawyer Tom Dunlap "has now simply reneged" on an agreement that he worked out with TWC to manage the flow of subpoenas.

Second, the entire approach to these lawsuits may be invalid. Filing lawsuits can be expensive; Most federal courts charge a $350 filing fee per case, along with a new set of paperwork. Each case also creates another docket to keep track of, making thousands of cases an administrative nightmare.

Instead of going this route, plaintiffs have gone the RIAA route, simply filing mass lawsuits against groups of "John Does," in some cases by the thousands. But, says TWC, channeling its inner Ray Beckerman, "It is not evident from the complaint in this case that there is anything common to the 2,094 defendants that would justify joining them in a single litigation... Courts facing these identical circumstances have repeatedly held that a plaintiff may not join in a single action multiple defendants who have allegedly downloaded or facilitated the download of copyrighted material at different times and locations.

"Thus, if the plaintiff wants to sue these 2,094 defendants, it owes this court 2,094 separate filing fees, and it must file individual actions. Plaintiff then would be unable to combine together a single, massive discovery request with which to burden non-party ISPs such as TWC."

Third, plaintiff lawyers keep expanding the scope of their subpoenas. The first complaint filed alleged 426 infringing IP addresses belonging to TWC subscribers. But when the company finally received a subpoena, it found requests for 809 IP addresses.

Taken together, said TWC, these "discovery abuses" mean that the judge should quash the subpoena. Alternately, the judge should limit the plaintiff to 28 TWC subpoenas each month.

According to the court docket, Comcast and Cablevision are trying to work out their own deal with the lawyers to keep the work to a minimum, though they could also ask the judge to quash the subpoenas if no agreement can be reached.

The power of self-interest

Time Warner Cable has not always had the reputation of a white knight when it comes to helping its subscribers—the company famously tried to squeeze more cash from broadband users by applying ridiculous data caps, an issue so sensitive to it eventually drew the wrath of senators and congressmen.

But in this case, with its own self-interest also on the line, TWC has made an argument that strikes not just at a single subpoena but also at the overarching legal strategy behind the US Copyright Group's work.